Leon Zvarevashe and Nyasha Mhuru v Ethel Chichera N.O and The State

The two applicants faced trial on a fraud charge under section 136(1) of the Criminal Law (Codification and Reform) Act. The allegations were that they induced the complainant, Debra Mullin, to sign an Agreement of Sale for her property valued at US$250,000 by misrepresenting it as a loan agreement for US$30,000. On 6 February 2023, the complainant attended a meeting where she signed documents she believed were loan agreements, and her daughter handed over the house title deed as security. The applicants disbursed funds and the complainant's daughter made partial repayments. When default occurred, the complainant discovered she had signed a sale agreement, not a loan document. At the close of the State's case, the applicants applied for discharge under section 198(3) of the Criminal Procedure and Evidence Act. The magistrate refused the discharge, finding a prima facie case had been established. The applicants then sought review of that interlocutory decision in the High Court, arguing the magistrate misdirected herself by applying a wrong test (stating discharge is granted "only in exceptional cases") and that the State had failed to prove essential elements of fraud.

• Whether the magistrate applied the correct legal test in refusing to discharge the applicants at the close of the State's case under section 198(3) of the Criminal Procedure and Evidence Act
• Whether there was evidence upon which a reasonable court might convict the applicants of fraud
• Whether the High Court should exercise its review powers to interfere with an interlocutory decision in ongoing criminal proceedings
• Whether the magistrate's reference to 'exceptional cases' constituted a misdirection warranting setting aside of the ruling
• Whether the admission and reliance on audio evidence without proper authentication violated the parol evidence rule or otherwise vitiated the proceedings

The application for review is dismissed. The trial in the magistrate's court is to proceed to completion. No order as to costs was mentioned.

A superior court should not interfere with an interlocutory decision refusing discharge at the close of the State's case unless there is a gross irregularity or grave injustice that cannot be remedied by the normal trial and appellate process. While a magistrate errs in law by stating that discharge is granted "only in exceptional cases" (the correct test being whether there is no evidence upon which a reasonable court might convict), such misdirection does not warrant review interference if the substantive decision - that a prima facie case exists - is supportable on the evidence. Where the State has led evidence that, if believed, could establish the essential elements of the charged offence, and that evidence has not been so utterly discredited as to be worthless, the magistrate is entitled to refuse discharge and put the accused to their defence. The burden of proof remains on the prosecution throughout, and requiring a defence case does not violate the presumption of innocence.

The court cautioned that trial courts must scrupulously adhere to the test in section 198(3) and avoid loose references to "exceptional circumstances," which is not part of the statutory test. The court stated: "at the close of the State case, the court's duty is to consider the evidence logically and lawfully. If there is no legally sufficient evidence, the court must acquit – doing so is not a rare indulgence, but a fundamental right of the accused." The court also noted that the audio recording's admissibility was questionable given lack of proper authentication and potential conflict with the parol evidence rule, but found it was not indispensable to the State's case. The judgment observed that Commonwealth jurisdictions (England, South Africa, Zimbabwe) share a consistent approach of not permitting interlocutory appeals or reviews at the halfway stage of criminal trials, with matters being resolved after verdict except in truly exceptional cases.

This Zimbabwean High Court judgment (which may be persuasive in South African law given shared Commonwealth criminal procedure traditions) clarifies important principles regarding discharge applications at the close of the State's case and interlocutory review of criminal proceedings. The case reinforces that: (1) the test for discharge under section 198(3) is not whether "exceptional circumstances" exist, but simply whether there is no evidence upon which a reasonable court might convict; (2) a magistrate's misdirection in articulating the legal test does not automatically warrant reversal if the substantive conclusion was correct; (3) superior courts will rarely interfere with ongoing criminal trials except where gross irregularity causes irreparable injustice that cannot be remedied on appeal; (4) requiring an accused to present a defence does not shift the burden of proof or violate fair trial rights when a prima facie case exists; and (5) the proper forum for challenging wrongful refusals to discharge is generally on appeal after conviction, not mid-trial review. The judgment provides guidance on balancing an accused's right to discharge when no case is made out against the principle of minimal interference with ongoing proceedings.